States take sides in GHG endangerment suit

By Kris Bevill

Posted March 25, 2010, at 2:14 p.m. CST

Sixteen states and 21 industry groups filed petitions last week to join what is becoming a massive legal battle over the U.S. EPA's greenhouse gas endangerment finding. Alaska and Michigan filed individual claims supporting efforts to oppose the EPA's finding while Nebraska, Florida, Hawaii, Indiana, Kentucky, Louisiana, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota and Utah filed a joint petition. The states are supporting earlier petitions filed by Alabama, Texas and Virginia. At least 16 other petitions, representing dozens of industry groups, have also been filed to oppose the EPA's finding.

According to petitions filed with the U.S. Court of Appeals for the District of Columbia, the states believe their individual concerns cannot be well-represented by Alabama, Texas and Virginia, and that the administrative burden resulting from EPA regulation of GHGs will greatly affect each state. The petition filed jointly by the 12 states used South Dakota statistics to illustrate this point. According to the petition, South Dakota expects to receive 40 new permit requests from large stationary sources immediately following the EPA's final rule on GHG regulation, and could receive up to 1,000 other permit requests from smaller sources. The state currently regulates 11 stationary sources under its Prevention of Significant Deterioration program and 94 stationary sources under its Title V permit program.

Alaska said it is not challenging the science on climate change that led to the EPA's decision, unlike other petitioners. Instead, the state has chosen to challenge the agency's interpretation of the authority granted to it under the Clean Air Act. Attorney General Dan Sullivan pointed out that Alaska has been involved in litigation challenging the EPA's authority to regulate GHGs under the CAA since 2003. "Our filing continues Alaska's involvement in this important case," he said. "With its endangerment finding, EPA has clearly signaled that its next step is to regulate emissions from stationary sources - a regulatory burden that would severely hamper economic growth and resource development throughout our state."

Also last week, Minnesota and Pennsylvania's environmental protection departments filed a joint petition to support the EPA's finding, stating that the court's decision will affect the public health and welfare of both states' residents and will affect "a host of global warming impacts that both states suffer, and will continue to suffer, in the future." Attorneys general from Arizona, California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington filed similar petitions in support of the EPA earlier this year.

There are now only 15 states that have not filed petitions to join in the lawsuit. However, many of those states are represented by industry associations that oppose the EPA's efforts. A coalition representing five national industry associations and 16 state and local associations filed a joint petition last week supporting efforts to prevent the EPA from regulating GHGs as a result of its endangerment finding. Organizations and chambers of commerce from Arkansas, Colorado, Idaho, Kansas, Ohio, Wisconsin and West Virginia signed the joint petition, leaving Nevada, Missouri and Montana as the only states not somehow involved in the lawsuit.

The appeals court will review and consolidate the additional petitions before further considering the case. The EPA continues to assert its right to regulate emissions under the Clean Air Act and it is widely held that the court will throw out the lawsuit. For further information, read "EPA lawsuits face tough road ahead."

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